Citation Nr: 0311299
Decision Date: 06/03/03 Archive Date: 06/10/03
DOCKET NO. 01-01 046 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for synovitis of the
right knee.
3. Entitlement to service connection for a left knee
disorder.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Wm. Kenan Torrans, Counsel
INTRODUCTION
The veteran served on active duty from July 1953 to February
1973.
This matter originally came before the Board of Veterans'
Appeals (BVA or Board) on appeal from a July 2000 rating
decision by the Department of Veterans Affairs (VA) Regional
Office (RO) in Waco, Texas, which denied the benefits sought.
Following receipt of the veteran's timely appeal, the Board
determined that additional development regarding the above-
captioned issues was necessary. Accordingly, in September
2002, pursuant to the authority granted by 67 Fed. Reg.
3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R.
§ 19.9(a)(2))), the Board itself undertook further
evidentiary development in connection with the above-
captioned issues.
A review of the claims file discloses that the requested
development appears to have been completed. Since that time,
however, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit issued a decision which essentially
precludes the Board, absent a signed waiver, from
adjudicating an appeal in which further evidentiary
development has been undertaken following review by the
agency of original jurisdiction. Such is particularly
applicable where there is some question as to whether or not
the newly developed evidence would allow for a full grant of
the benefits sought. See Disabled American Veterans, et. al.
v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316
(Fed. Cir., May 1, 2003). Accordingly, this case must be
remanded back to the RO in order that the above-captioned
issues can be adjudicated by the agency of original
jurisdiction.
REMAND
The veteran maintains that he incurred bilateral hearing loss
as a result of exposure to acoustic trauma during his active
service. In addition, he claims that he sustained injuries
to his knees in service, and that he currently suffers from a
bilateral knee disability. Accordingly, the veteran asserts
that service connection is warranted for bilateral hearing
loss and a bilateral knee disorder.
As noted, in September 2002, the Board undertook additional
evidentiary development consisting of obtaining clinical
treatment records and scheduling the veteran to undergo a VA
rating examination. Such development appears to have been
completed, but pursuant to the holding by the U.S. Court of
Appeals for the Federal Circuit in Disabled American
Veterans, et. al. v. Secretary of Veterans Affairs, supra,
absent a signed waiver, the Board is precluded from
adjudicating the above-captioned issues before review by the
agency of original jurisdiction. Accordingly, the case must
be remanded back to the RO in order that the veteran can be
afforded the due process to which he is entitled.
In that regard, the Board finds that the RO should ensure
that all up-to-date clinical treatment records have been
obtained and associated with the veteran's claims file, and
should ensure that the evidentiary record provides a
sufficient basis upon which to adjudicate the veteran's
claims. If any deficiencies are noted, the RO should
undertake any corrective action deemed necessary. Further,
the RO should ensure that all notice and duty to assist
requirements as set forth in the Veterans Claims Assistance
Act of 2000 (VCAA) have been met. See VCAA, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, and 5107). The RO should then adjudicate
the issues remaining on appeal with consideration given for
all relevant evidence.
Accordingly, this case is REMANDED for the following:
1. The RO should contact the veteran and
request that he identify any and all
health-care providers who have rendered
treatment for his claimed bilateral knee
and hearing disabilities dating from
September 2002 to the present. After
securing any necessary authorization, the
RO should obtain and associate with the
claims file any such identified records.
If no additional records have been
identified or are otherwise unavailable,
the RO should so indicate.
2. The RO must ensure that all notice
and duty to assist requirements as set
forth in the VCAA have been met. The RO
should review the medical evidence
obtained through the Board's internal
development process and make a
determination if such evidence provides a
sufficient basis upon which to adjudicate
the veteran's claims. If not, any
corrective action deemed necessary should
be undertaken to correct any deficiency.
3. The RO should adjudicate the issues
of entitlement to service connection for
bilateral hearing loss and for left and
right knee disorders on the basis of all
available evidence. If the decision
remains unfavorable to the veteran, he
and his service representative must be
provided with a supplemental statement of
the case outlining all relevant statutory
and regulatory provisions governing the
issues on appeal. The veteran and his
representative must be afforded an
opportunity to respond before the case is
returned to the Board for any further
review.
The purpose of this REMAND is to obtain additional
development, and to ensure that all due process requirements
have been met. The Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time. The veteran is free to submit any additional
evidence or argument he desires to have considered in
connection with the current appeal. See Kutscherousky v.
West, 12 Vet. App. 369 (1999). No further action is required
of the veteran until he is notified.
_________________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).